Opting out

Under the Working Time Regulations 1998, employees have the right to work a maximum 48-hour week. They can opt out of the provision to work longer hours if they want, but employers must not put them at a disadvantage if they chose not to.

In a recent case - Clamp v Aerial Systems - the appeal tribunal decided that after deciding not to opt out, Mr Clamp did not suffer any disadvantage. The changes to his working conditions were a consequence of the variation to which he agreed, and not a detriment.

The case was supported by Mr Clamp's union who instructed Thompsons.

What were the basic facts?

Having agreed to opt out of the 48-hour limit imposed by the Working Time Regulations 1998, Mr Clamp worked a 60-hour week as an aerial fitter over a wide geographical area, for which he was paid a basic salary and commission.

He subsequently decided, however, that he wanted to opt back in and agreed with his employer to reduce his hours to 48 per week. The hours were calculated by a tracker fitted in his vehicle, but excluded his travelling time to and from home.

However, the company then started treating him differently from other employees on odd occasions when jobs were not allocated the day before. Instead of being able to wait at home until he was told where to go, he was asked to wait at a designated spot on a motorway slip road so that he could get to the job quicker.

Mr Clamp argued that he had suffered a detriment within section 45A of the Employment Rights Act 1996 (see box below), on the basis that his hours now excluded travelling time, whereas before they did not.

The tribunal disagreed and said that there had simply been a variation to his contract, to which Mr Clamp had consented. If he suffered a disadvantage from that change, it was balanced by the fact that he was being paid the same salary for fewer hours. The fact that he also had to wait, occasionally, on the motorway, did not amount to a significant detriment.

What did the EAT decide?

And the EAT agreed. It said that it was as a consequence of the variation, and not a detriment, that his hours now excluded travelling time. Even if he had suffered a reduction in salary, that would also have been a consequence and not a detriment of the change to his contract.

It said that although there is no need for claimants to establish any physical or economic consequence to show they had suffered a detriment, there still had to be 'firm evidence of the existence of an actual detriment.' It had to be 'material and substantial'.

There was no evidence that waiting on the motorway disadvantaged Mr Clamp in any way. If anything, the contrary was true because his 48 hours started to tick from that point and his travelling time to the first job was also included in the calculation. Mr Clamp did not, therefore, suffer a material and substantial detriment and the appeal tribunal dismissed his claim.

This case will no doubt be exploited by employers seeking to justify worse terms for workers exercising their rights to opt out. This decision does not seem to accord with the purpose of the directive - which is to protect workers.